Women and tefillin: A reply to Rabbi Ethan Tucker

Rabbi Ethan Tucker is passionate, thought-provoking, and undoubtedly sincere on the topic of women and tefillin. Nonetheless, I respectfully contend that his article presents an unproductive and misleading basis for re-thinking this issue in three significant ways.

1.  The Talmudic Sages Did Not Protest Women Donning Tefillin

Rabbi Tucker’s essay generates the impression that Talmudic Judaism opposed women wearing tefillin because allowing them to wear tefillin would allow them to exceed second-class status.

But the dominant position within the Talmudic literature – and particularly within the Babylonian Talmud, the accepted authoritative legal text of the halakhic community for well over a millennium – is that women can indeed don tefillin, either out of obligation or out of choice. This is also the conclusion of many medieval commentators and is even the (somewhat reluctant) opinion of one of contemporary Israel’s most prominent religious decisors, as I document in a forthcoming essay.   

To demonstrate this, we must review the attitudes that the Sages took toward the possibility of women donning tefillin, which include three primary models:

1. Women are obligated to wear tefillin: This is the opinion attributed to two prominent tannaim, R. Meir and R. Yehuda, as cited in multiple Talmudic passages (see, for example, Kiddushin 35a and Eruvin 96a-b). According to the final construction of their rationale given in the Gemara, they believed tefillin are not positive time-bound commandments and therefore women are obligated in this commandment.
2. Women are exempt from wearing tefillin because it is a positive time-bound commandment: This is the stated position of the mishna in Brakhot (20a-b) and elaborated upon by the Talmud in Masekhet Kiddushin (34a). According to this approach, tefillin fit into the general prescriptive rule regarding such commandments (like dwelling in a sukkah) that exempt women from performing them.^[i]
3. Women are exempt from wearing tefillin because only people who are obligated in the mitzvah of learning Torah (Talmud Torah) are obligated in tefillin. This is the stated rationale in the Mekhilta and the Yerushalmi (Brakhot 3:2). A later compilation of Palestinian origins, the Pesikta Rabati, also quotes the Yerushalmi‘s account.  (The analogy is also stated in the Bavli Kiddushin 34, but is a highly marginalized consideration in that passage).

According to approach #1, women are obligated to wear tefillin.

According to approach #2, they are exempt but may wear tefillin, as seen from their refusal to protest the actions of Michal the daughter of Shaul, who donned tefillin “and the rabbis did not reprove her” (Eruvin 96).  This is in accordance with the Talmudic position, deemed normative within subsequent Jewish law, that there is no general objection to performing mitzvoth when not commanded.

According to approach #3, women are exempt but may be allowed to wear tefillin. The sources that use this model report conflicting traditions about the response of the Sages to Michal’s actions. The Mekhilta states that the Sages did not protest, while the Yerushalmi and the Pesikta record that position as well as an Amoraic position that the Sages in fact reproved Michal.

I stress the importance of this schematization because contrary to the impression given in the essay of Rabbi Tucker, the dominant position within the Talmudic literature – and particularly within the Babylonian Talmud, the accepted authoritative legal text of the halakhic community for well over a millennium – is that women can indeed don tefillin, either out of obligation (model #1) or out of choice (model #2). Even in model #3, the fact that both positions are recorded suggests that they were reached for reasons independent of the Talmud Torah – Tefillin connection.

All of this highlights the fact that the Sages (and certainly those recorded in the Babylonian Talmud) did not see the donning of tefillin by women as particularly problematic. As Rabbi Aryeh Klapper has recently noted, this is emphasized by their acceptance of model #1 with equanimity – it is a perfectly plausible possibility to the Sages that women might don tefillin.  Many prominent medieval scholars affirmed that women may perform mitzvoth from which they are exempt, and did not exclude tefillin. In fact, they cited Michal as a proof to their position.

Rabbi Tucker argues that the exemptions of women and slaves from donning tefillin

“take external categories from the Roman world in which they live and map them onto our internal rituals and practices. Women and slaves—neither of whom could vote in ancient Rome, nor in most ancient civilizations—are self-evidently not expected in the Beit Midrash, which is the seat of rabbinic power, creativity and influence. The Mekhilta picks up only from that starting point—it would be absurd for someone so excluded to be expected to wear tefillin.”

He further cites a few Talmudic passages which assert that slaves were discouraged from donning tefillin because it would lead to confusion (or change their status) and argues that this proves that those who cannot don tefillin are substandard citizens.^[ii]

Yet the fact remains that he offers no examples of similar statements about women donning tefillin. In fact, the Talmud Yerushalmi (Brakhot 3:3) offers sharply different rationales for exempting women and slaves: only a slave is prohibited from donning tefillin because he has another master, but women require a separate rationale. In the eyes of the rabbis, women do not have the equivalent status as slaves. Women are full-fledged Jews who are obligated in the vast majority of commandments. This even includes many positive time-bound rituals that are attached to the historical narrative of the Jewish people – such as celebrating the Purim, Pesach, and Hannukah miracles – in which women, like all Jews, are deeply rooted. This is opposed to non-Jewish slaves, who are at best in a limbo intermediate state of conversion, and therefore their donning of tefillin might create confusion as to their status.

In short, contrary to Rabbi Tucker’s presentation, there is no evidence that anyone in the rabbinic period thought that women could not or should not wear tefillin because tefillin were associated with Talmud Torah, let alone because tefillin represented full citizenship.

II.  Women Recite Kri’at Shema, Another Mitzvah Connected to Talmud Torah 

Rabbi Tucker contends, in both his original Times of Israel post and followup essay, that we should focus on the etiology of the exemption of women from tefillin. He bases himself on the claims of the recent work of Prof. Elizabeth Shanks Alexander, who argued that women’s exemption from tefillin stems from their exemption in the commandment to study torah (Mitzvat Talmud Torah), as presented in model #3 above.  Let us assume that her thesis is correct: the original historical argument for the exemption of women from donning tefillin is connected to their exemption from Talmud Torah, as stated in the Mekhilta. Based on the alleged degraded social status that this exemption imposes upon women, Rabbi Tucker states, “It would be absurd for someone so excluded to be expected to wear tefillin.”

Yet there is another mitzvah from which women are exempted in the same mishna in Brakhot:  the commandment to recite the Torah passages known as Kri’at Shema. Prof. Shanks Alexander also contends, not without reason, that women were similarly exempt from this commandment because it is connected to Talmud Torah. This might come as a surprise to many people because today women are strongly encouraged to recite kri’at shema daily as an expression of their acceptance of the yoke of commandments, with many arguing that they are in fact obligated to recite at least the first sentence (Mishna Berura 70:4). Yet this is indeed the law in the mishna and many (but not all) subsequent sources – women are exempt.

Here’s a basic and obvious question: How many scholars within the chronicles of Jewish law have ever contended that a woman is forbidden to recite kri’at shema because she is exempt from its formal recitation since it is a manifestation of Talmud Torah? Did any of them suggest, “It would be absurd for someone so excluded to be expected to recite kri’at shema?”^[iii]Would anyone say such a thing to the countless pious women who have recited it over the ages – not to mention the thousands of female martyrs who died with those words in their mouths? Kri’at Shema proves that even if one is one exempt from Talmud Torah, one may still choose to perform meaningful rituals connected to Talmud Torah – just as we today see many women engage in meaningful Torah study itself, even though they remain exempt from this commandment.

Rabbi Tucker’s argument seemingly dismisses both the possibility and the meaningfulness of a woman choosing to perform these mitzvoth out of general religious fervor (reshut), as opposed to formal obligation.^[iv] Yet that was a bona fide option within the world of the Sages who, as we have seen, had no problem contemplating a woman donning tefillin as act of piety or a full-fledged obligation.

None of this, of course, is to suggest that the status of women within rabbinic thought in general and halakha in particular does not require careful analysis and contemplation. To the contrary, concepts like women’s exemption from positive time-bound commandments continue to require further analysis, as does the Sages’ dictum that it is greater to act out of commandedness than to perform a ritual voluntarily.

Yet the model presented by Rabbi Tucker is not compelling. The alleged second-class status of women will not be solved by reading that status into the halakhic record where it does not belong, or by unconvincingly attributing problematic positions to the Sages. Or, to put it another way, the alleged denigration of women will not be solved by the unjustified denigration of the Sages, unintentional as it might be. This is especially so for any community that seeks to ground its religious practice in deep respect for and commitment to the teachings of its forebears.

III. The Mekhilta Is Irrelevant in Subsequent Halakhic Literature  

Rabbi Tucker’s argument is also deeply flawed for a different reason:  the connection between Talmud Torah and tefillin has been rejected as the dominant explanation for women’s exemption from tefillin. Quite frankly, the Mekhilta‘s drasha regarding women has become, for all practical legal purposes, irrelevant over the ages. All consequential legal discussions – beginning with the Mishna and continuing throughout the Bavli – revolved around whether tefillin is a time-bound positive commandment (based on models #1 and #2 above). As such, this became the deciding rationale of the case, what legal thinkers call the ratio decidini. The argument regarding Talmud Torah and tefillin remained academically interesting, but for legal purposes became the obiter dictum, an argument that was not essential to the decision and was not deemed to establish any logical precedent for future deliberations on this question. Law evolves, and while in theory model #3 might have become dominant, Jewish law went in a different direction.^[v]  With regard to the question of women wearing tefillin, this analogy does not play a role in later discussions.

Some legal theorists have called this process of determining the deciding rationale of a disputed ruling the “path-dependence” of the law: when certain precedents have been set, the path of subsequent legal discourse is determined by this logic. Later discussion thus relies on and becomes constrained by this earlier decision. Subsequent legal discussion, therefore, revolved around the question of whether women could perform positive time-bound commandments in general and tefillin in particular.

Of course, some today may choose to abandon the traditional halakhic process, just as some have done in the past.  Those committed to full-fledged egalitarian social norms will be hard-pressed to accomplish their goal without rethinking major assumptions of the Sages, which will likely include questioning the social and legal assumptions of the entire rabbinic system by focusing on the alleged historical origin of a given law.  This will allow them, for example, to create egalitarian obligations in Talmud Torah.  Yet such an approach abandons, in practice, the post-Talmudic legal process that developed over the last 1500 years or so, and has been utterly rejected by traditional thinkers (across the spectrum) who remain committed to subsequent halakhic literature.

When dealing with questions of contemporary law and gender (or any other halakhic dilemma), our approach should encompass case-by-case analysis of each halakha, exploring the law from the Talmud through medieval and modern commentators until contemporary legal decisors. We may then see the nature of the law, explore the rationales and interpretations given to it over the eras, and ask whether an argument can be made to expand the ritual options for women, should the community desire such a change. Elsewhere I have suggested such a model in thinking about female rabbis and communal leaders, and I am currently completing a similar essay regarding questions of tefillin and women, which I hope will offer a positive framework for thinking about this question.

(Update:  My extended essay focusing on halakhic analysis is now available here)